Court upholds EPA 'nonattainment' designations for soot

A federal appeals court yesterday upheld nearly all U.S. EPA designations of areas where airborne soot concentrations exceed national standards, rejecting challenges from state and local governments and industry groups.

The U.S. Circuit Court of Appeals for the District of Columbia yesterday rejected nearly every challenge from nine cities and counties, 10 power-industry groups and three states -- New York, West Virginia and Indiana -- upholding EPA's 2005 designations of nonattainment for fine particulate matter, or soot.

The agency in 2005 listed 225 U.S. counties as violating the 1997 federal PM 2.5 standards.

State and local governments and industry groups filed legal challenges against the agency's designations. They argued that EPA had illegally bypassed notice and comment for policies guiding the designations and challenged EPA's authority to define nonattainment areas as broad metropolitan regions. Petitioners also said the agency's designation rule was arbitrary and capricious and requested that the court vacate certain designations.

But the three-judge panel rejected the petitioner's procedural challenges and upheld the agency's designation of all but one of counties.


The court's decision means counties must continue to comply with the Clean Air Act's requirements for nonattainment areas, which includes restrictions on construction or modification of major emitting facilities, large factories and power plants, and other pollution-control requirements, Earthjustice attorney David Baron said.

The ruling was significant in part because "the court showed a great deal of deference to EPA's decision-making on how to draw these nonattainment area boundaries," Baron said. Importantly, he added, the court seems to have accepted the rationale that violations of air standards are "the result of emissions and activities throughout a metropolitan area -- not just activity around one monitor -- and so the solution requires a metropolitan-wide effort."

The court ordered EPA to reconsider the nonattainment status of Rockland County, N.Y., north of New York City. "EPA appears to have acted inconsistently in designating Rockland County as a nonattainment area," the panel wrote.

Still, Baron said, the agency did not vacate the county's designation, and the state must continue to treat Rockland County as a nonattainment area until a final decision is made.

Click here to read the court's ruling.

Click here for a map of nonattainment areas.

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